Is it permissible for a woman to write the marriage contract?
I hope that you can answer my question. Many thanks.
Praise be to Allaah.
The one who
writes down the marriage contract is known as the registrar or by other
titles
This is the
one who conducts the marriage procedure in accordance with the essential
shar’i requirements, and records it in a document called ‘aqd al-nikaah
(the marriage contract).
One of his
duties is to confirm that the bride gives her consent and agrees to this
marriage, by consulting a previously-married woman and by asking the
permission of a virgin, finding out the conditions stipulated by both
parties and ensuring that there are no impediments to the marriage.
His duties
also include confirming whether the wali is acceptable as a wali according
to sharee’ah or not, and confirming the identity of the witnesses and
recording their testimony.
His duties
also include documenting the nature and amount of the mahr, whether it has
been received by the bride or the wali, or not, and whether there remains
any of it to be paid at a later date, or it has been paid in full.
Acting as a
registrar is regarded as a branch of the judiciary, in fact the registrar is
acting as a deputy of the shar’i judge (qaadi), so the registrar must
himself meet some of the conditions that are stipulated for the qaadi, the
most important of which are that he should be Muslim, male, an adult, of
sound mind and mature.
It is
permissible for a woman to help prepare the marriage contract with regard to
the dowry and consent of both parties. But with regard to directly doing the
marriage procedure, it is not permissible for her to do that. Concerning
this there is a report from ‘Aa’ishah (may Allaah be pleased with her).
It was
narrated that Ibn Jurayj said: When ‘Aa’ishah wanted to arrange the marriage
of one of her womenfolk, she called some of her family and would recite the
shahaadah, and when there was nothing left but the nikaah, then she would
say: “O So and so, perform the marriage, for women cannot perform
marriages.”
Musannaf
‘Abd al-Razzaaq (6/201); classed as saheeh by
al-Haafiz Ibn Hajar in Fath al-Baari (9/186).
It was
narrated that ‘Aa’ishah said: If a young man from among her sister’s
children liked a young women from among her brother’s children, a curtain
would be set up between them and she would speak, and if there was nothing
left but marriage she would say: “O so and so, perform the marriage, for
women cannot perform marriages.”
Musannaf
Ibn Abi Shaybah (3/276)
There was
also narrated from ‘Aa’ishah a report which may be misinterpreted as meaning
that a women is allowed to conduct marriages, and the Hanafis quoted it as
evidence that it is not essential to have a wali for marriage.
It was
narrated from al-Qaasim ibn Muhammad that ‘Aa’ishah the wife of the Prophet
(peace and blessings of Allaah be upon him) married Hafsah bint ‘Abd
al-Rahmaan to al-Mundhir ibn al-Zubayr when ‘Abd al-Rahmaan was away in
Syria. When ‘Abd al-Rahmaan came he said: How could such a thing be done to
me? How could I be mistreated in such a manner? ‘Aa’ishah spoke to
al-Mundhir ibn al-Zubayr and al-Mundhir said: That is up to ‘Abd al-Rahmaan.
‘Abd al-Rahmaan said: I would not undo something that you have decided.
Therefore Hafsah remained married to al-Mundhir and there was no divorce.
Narrated by
Maalik (1182). Its isnaad is saheeh.
What they
understood from this report is wrong. What the report means is in accordance
with what we have narrated from ‘Aa’ishah (may Allaah be pleased with her)
above.
Imam Abu
Waleed al-Baaji (may Allaah have mercy on him) said:
The words “
‘Aa’ishah married Hafsah to…” may be understood in two ways:
1 – That she
herself did the marriage contract. This was narrated by Ibn Muzayn from
‘Eesa ibn Dinar who said: This is not the usual practice – i.e., the
practice of the people of Madeenah at the time when ‘Eesa was there –
because Maalik and the fuqaha’ of Madeenah did not regard as permissible a
marriage contract done by a woman, and it to be regarded it as invalid
whether the marriage is consummated or not.
2 –That she
only discussed the mahr and other matters having to do with the marriage,
and appointed one of her male relatives to conduct the marriage, but the
contract was attributed to ‘Aa’ishah because she is the one who arranged it.
It was narrated that ‘Aa’ishah would arrange marriages then say: “Perform
the marriage contract, for women cannot perform the marriage contract.” This
is what is well known among the Sahaabah, that it is not valid for a woman
to perform a marriage contract for herself or for another woman.
Al-Muntaqa Sharh al-Muwatta’ (3/251).
Ibn ‘Abd
al-Barr (may Allaah have mercy on him) said:
The words in
this hadeeth – ‘Aa’ishah married Hafsah, the daughter of her brother ‘Abd
al-Rahmaan, to al-Mundhir ibn al-Zubayr – are not to be taken at face value.
What is meant by the words “she married Hafsah to” is – and Allaah knows
best –the proposal of marriage and other arrangements concerning the dowry,
consent to marriage and so on, not the marriage contract itself. This is
based on the hadeeth that is narrated from her, which says that when she had
finished discussing the proposal, dowry and consent to marriage, she would
say: “Perform the marriage contract, for women cannot perform the marriage
contract.”
He said: The
Kufis quoted as evidence the hadeeth of Maalik from ‘Abd al-Rahmaan ibn
al-Qaasim from ‘Aa’ishah that is mentioned in this chapter about it being
permissible for a woman to perform a marriage contract.
But it
cannot be evidence because of the hadeeth of Ibn Jurayj that we have quoted,
and because ‘Aa’ishah is the last of those who quoted the Prophet
(peace and blessings of Allaah be upon him) as saying: “There can be no
marriage without a guardian.” The word wali (guardian) can only be applied
to male relatives, not women.
Al-Istidhkaar (6/32).
Conclusion:
It is
permissible for a woman to arrange and prepare for a marriage but it is not
permissible for her to conduct the marriage herself, because that is the job
of the qaadi or his deputy, and one of the conditions of the qaadi is that
he should be male.
If the
marriage contract has been performed with the consent of both parties and
the agreement of the wali, and the woman is appointed to document the
marriage contract, such as if she is an employee working in the court or
sharee’ah department, and the like, then it seems that there is nothing
wrong with that, because the marriage contract has been done, and all she is
doing is recording it in a document.
But if she
is a witness to the marriage contract or is the one who decides the validity
of the witnesses or she is the one who conducts the marriage, instead of the
wali, then that is not permissible.
And Allaah
knows best.
No comments:
Post a Comment